When an individual dies, there is generally no more than one year from the date of death to make a “claim” against his/her estate. The burden to commence a claim is the responsibility of the claimant. Mo. Highway & Transp. Com’n v. Myers, 785 S.W.2d 70, 73 (Mo. 1990). The general purpose of this deadline is…
Legal Articles
Trust Language: “Necessary or Advisable” Distributions
The language of a trust is extremely important. And when a will, trust, and other estate documents form part of the same plan, they are interpreted together. Indeed, “[w]hen a trust and will form parts of the same plan, they must be construed together.” Shriners Hospital for Children v. Schaper, 215 S.W.3d 185, 189-90 (Mo….
Will Contest Standing
A party with “standing” has the legal right to sue for injuries. In some situations, this can be nuanced. For example, the will contest requirements are rigidly prescribed in Section 473.083, RSMo. With will contests, “standing has been described as belonging to one who would either gain or lose under the contested will.” Salvation Army,…
Breach of Trust, Sole Discretion
Fiduciary and trust litigation can be very complex. In certain trust instruments, a trustee is granted “sole discretion” to do certain things. This language, however, can be very misleading. Even when a trustee is granted “sole discretion,” a trustee may be liable if the trustee willfully abuses his discretion, acts arbitrarily, fraudulently, dishonestly, or with…
Creditor Claims Against Trust-Maker
During the lifetime of a settlor (i.e., trust-maker), the property of a revocable trust is subject to claims of the settlor’s creditors. Section 456.5-505.1, RSMo. Upon the settlor’s death, most revocable trusts are structured to where the trustee may pay the settlor’s last debts and expenses. Because these expenses can arise down the road and…
Disinheritance Clauses in Wills/Trusts
“No contest” (or in terrorem) clauses are increasingly relevant in probate, trust, estate and will litigation. The classic no contest clause provides that if a person contests the validity of a will or trust, he or she is disinherited and receives nothing by way of inheritance. The obvious purpose of the clause is to reduce…
Spousal Abandonment, Disinheritance
In Missouri, a spouse may forfeit spousal inheritance rights if he/she “abandons” his/her spouse. Section 474.140, RSMo provides: “If any married person voluntarily leaves his or her spouse and goes away and continues with an adulterer or abandons his or her spouse without reasonable cause and continues to live separate and apart from his or…
Powers of Attorney, Dealings with Third Persons
While powers of attorney are useful tools to allow one person (the attorney-in-fact) to act another person’s behalf (the principal), third-parties are sometimes distrustful of a power of attorney. A power of attorney is relatively easy to create. There are many forms online, including from state bar associations, that seemingly anyone can print and use….
Power of Attorney and Attorney-in-Fact Liability
Power of attorney instruments for finances are common estate planning tools. The parties to a power of attorney are the principal and attorney-in-fact. The principal designates and nominates the attorney-in-fact to engage in specified and authorized activities on the principal’s behalf. The attorney-in-fact is a fiduciary and must act in the principal’s interests. The relationship…
Cotrustee Breach of Trust
There are additional fiduciary duties in play when there are cotrustees of a trust. If cotrustees are serving, the default rule is that they act by a majority decision. Section 456.7-703.1, RSMo. A cotrustee is under an obligation to participate in the performance of a trustee’s function — unless the trustee is absent, ill, legally…